The Politics of Early Justice: Federal Judicial Selection, 1789-1861

• Author: Michael J. Gerhardt & Michael Ashley Stein
• Position: Samuel Ashe Distinguished Professor of Constitutional Law and Director of the Center on Law and Government, University of North Carolina School of Law/Visiting Professor, Harvard Law School, and Professor, William & Mary Law School
• Pages: 551-615

L APPOINTMENTS PROCESS 3–22 (1994); RICHARD DAVIS, ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS 3–13 (2005); Theodore B. Olson, The Senate Confirmation Process: Advise and Consent, or Search and Destroy? , in 15 GAUER DISTINGUISHED LECTURE IN LAW AND PUBLIC POLICY 9–23 (Tim O’Brien ed., 2005). 2. See, e.g. , CHARLES PICKERING, SR., SUPREME CHAOS: THE POLITICS OF JUDICIAL CONFIRMATION & THE CULTURE WAR (2005); Orrin G. Hatch, The Constitution as the Playbook for Judicial Selection , 32 HARV. J.L. & PUB. POL’Y 1035, 1038–39 (2009); Carl Tobias, Senate Gridlock and Federal Judicial Selection , 88 NOTRE DAME L. REV. 2233, 2234–35 (2013); Laurel Bellows, Judicial Emergencies Worsen as Partisanship Stalls Nominations in the Senate , A.B.A. J. (July 1, 2013, 9:40 AM), http://www.abajournal.com/magazine/article/judicial_emergencies_worsen_as_ partisanship_stalls_nominations_in_the_senat/; Editorial, Filibustering Nominees Must End , N.Y. TIMES (Jan. 28, 2012), http://www.nytimes.com/2012/01/29/opinion/sunday/filibusteringnominees-must-end.html; Edmund H. Mahony, Shortage of Federal Judges Stressing the System , HARTFORD COURANT (Dec. 2, 2012, 6:14 PM), http://www.courant.com/news/politics/hcp-federal-judges-shortage-20121203,0,184099.story. 2015] THE POLITICS OF EARLY JUSTICE 553 reinforcing the received, but unsubstantiated, assumptions about how judicial nominations to lower courts fared beforehand. 3 It is tempting to oversimplify, discount, mythologize, or simply ignore the early history of federal judicial selection. Because the Senate confirmed the vast majority of judicial nominations prior to the Civil War, one might be inclined to think that the system must have been working ideally, or at least as it was intended, with paramount importance attached to a nominee’s integrity and qualifications. Such a conclusion is especially alluring when considering, as we do here for the first time in the literature, the relative success rate of judges nominated during the last six months of a presidential term. However, the real story is much more nuanced and contextually dependent. The fact that the Senate confirmed most judicial nominations during the first seven decades of the Republic period does not recount the full story of antebellum federal judicial selection. It was neither a “golden era” nor perfectly analogous to our modern one. In fact, the means by which Presidents could communicate with their nominees was quite limited, resulting sometimes in the nomination of the wrong people, the nominations of the right people but to the wrong courts, and the confirmations of nominees who subsequently withdrew for personal or financial reasons. These miscues have little or no salience in the modern era in which the White House, the Federal Bureau of Investigation (“FBI”), the American Bar Association (“ABA”), round-the-clock media coverage, and numerous interest groups all help or join with the well-staffed Senate Judiciary Committee to vet judicial nominees. Hence, there is more emphasis today on processes filtering out potentially problematic nominees, including the significant time lapse in reaching Senate consideration. Nor was the antebellum Senate uniformly or reflexively deferential, occasioning the forced withdrawals of some nominees, rejections based on concerns about the nominees’ integrity, or their positions on the hot-button issues of the day—most importantly, slavery. There was deference, but it was not automatic. Further, there was no systematic or sustained consensus on “merit.” Judicial nominations were often made to reward political allies, and opposition fomented to punish political foes. Political and ideological concerns were almost always a backdrop, if not expressly important factors, in the dynamics of the judicial nomination and confirmation process during the pre-Civil War period. Strikingly, despite the existence of a greater absolute number of judicial seats (and allegedly more bitter politics), the ultimate percentage of confirmed nominees between the antebellum period and the modern one is comparable. Moreover, the confirmation process in each of these eras largely functioned as it was designed by the Framers and paid special attention to nominees who lacked integrity or were obviously unqualified or unsuited for the bench. 3. See generally KERMIT L. HALL, THE POLITICS OF JUSTICE: LOWER FEDERAL JUDICIAL SELECTION AND THE SECOND PARTY SYSTEM, 1829–61 (1979). 554 IOWA LAW REVIEW [Vol. 100:551 To be sure, few scholars actually make the unqualified claim that there was a specific “golden era” of apolitical federal judicial appointments. However, the overwhelming majority of scholarship that addresses the nomination and confirmation process waxes nostalgically on some elusive era wherein the process functioned more perfectly. For example, Benjamin Wittes, in his widely-cited book Confirmation Wars , states that “[t]he general trend at the lower-court level . . . is that the ability of presidents to win confirmation for their judicial nominees has eroded steadily since the mid-1980s.” 4 Critics of the current system often point to the increased politicization of the process as the cause of departure from some prior “golden era.” The ideal approach to federal judicial selection would presumably focus primarily, if not exclusively, on personal qualifications, integrity, and strength of character in place of the apparent current preoccupation with political party affiliation. In fact, the process has never had that kind of focus, and a closer look at the early years of judicial selection reveals an era of controversial nominations that was by no means halcyon. This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789 to 1861 in the United States. We identified each of the lower court nominations made by Presidents, from George Washington through James Buchanan, and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations, as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest Presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum President took political considerations into account in making nominations; all antebellum Presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum Presidents—George Washington, Martin Van Buren, and James Polk— enjoyed Senate confirmation of 100% of their judicial nominations. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. 4. BENJAMIN WITTES, CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN ANGRY TIMES 41 (2006). 2015] THE POLITICS OF EARLY JUSTICE 555 The Article proceeds as follows. In Part II, we provide an overview of federal judicial selection from 1789 to 1861. We describe the basic allocation of power and patterns relating to early federal judicial selection and provide a table setting forth a complete list of the failed judicial nominations during this period and the likely reasons for their failures. Part III, the heart of the Article, examines in detail the judicial nominations made by every President from Washington through Buchanan. For each President, we include a table setting forth each of his failed nominations, including information on the composition of the Senate at the time. In Part IV, we analyze how the data in the previous Part illuminate our understanding of federal judicial selection. Perhaps most importantly, the data indicate how Presidents and Senators in this early era used judicial nominations to advance their political agendas and, particularly, how the Senate approved them when those agendas aligned with those of a majority of Senators and rejected them when they did not. Consequently, the early history of federal judicial selection provides a glimpse not only into how the selection process used to be, but also how it was likely to evolve. We conclude our analysis by comparing and contrasting the processes of the antebellum period and those of the contemporary period. The extent to which the process is different now is the product or culmination of many different forces. Not the least of these are: technological developments, which have improved the dissemination of information about nominees; the increased workload of the Senate and capacity to process it; the expansion of judicial review over time and corresponding consensus on the importance of judicial appointments; and the inevitable extent to which nominees have become proxies or substitutes for differences or fights over other issues. In short, there was neither a “golden era” of Senate deference to judicial nominations nor a focus strictly on merit separated from ideology and partisan concerns, but rather, different eras in which politics, in different ways, shaped federal judicial selection. II. AN OVERVIEW OF EARLY FEDERAL JUDICIAL SELECTION The basic process for making judicial appointments during the Republic’s first seven decades was, of course, the same as...